Migration (Review) Regulations (Amendment)

Legislation au C2004L05136 Regulations Not in force Legislative Instrument

Legislation content

Migration (Review) Regulations (Amendment) 1991 No. 298

 

 

EXPLANATORY STATEMENT STATUTORY RULES 1991 No. 298

Issued by the Authority of the Minister for Immigration, Local Government and Ethnic Affairs

 

Migration Act 1958

 

Migration (Review) Regulations (Amendment)

 

Section 181 of the Migration Act 1958 (the Act) provides that the GovernorGeneral may make regulations for the purposes of the Act. In addition, sections 115 and 116 of the Act provide that regulations may provide for, inter alia,

 

-              the types of decisions to be reviewed;

 

-              the manner and form of applications for such reviews; and

 

-              the persons who may apply for such reviews. The purpose of the regulations is:

 to make some grammatical and technical corrections;

 

 to increase the fee for internal review from $150 to $200 in accordance with Government policy;

 

 to provide for refund of the fee for internal review and the fee for review by the Immigration Review Tribunal (IRT) in certain situations where the application for review has been withdrawn;

 

 to require that nominators wishing to apply for review of a refusal of a December 1989 (temporary) entry permit are Australian citizens or Australian permanent residents; and

 

 to amend the time limits within which applications for review must be lodged to reflect recent amendments to the Migration Act.

 

Regulation 11 which increases the period during which review applications can be lodged has been made retrospective to 26 June 1991 when the enabling legislation received assent. The retrospectivity is beneficial to applicants and no person will be disadvantaged. The retrospectivity is therefore not in conflict with provisions of the Acts Interpretation Act 1901.

 

Details of the regulations are set out in the Attachment.

ATTACHMENT

 

Regulation 1 - Amendment

 

This regulation provides for the Review Regulations to be amended. Regulation 2 - Commencement

This regulation provides that regulation 11 is retrospective to 26 June 1991, when enabling legislation received assent. This retrospectivity is beneficial in that some potential review applicants were mistakenly notified by certain review officers that the new time limits operated from 26 June 1991.

 

Regulation 3 - Regulation 2 (Interpretation)

 

This regulation makes a grammatical correction.

 

Regulation 4 - Regulation 2A (Internally reviewable decisions)

 

This regulation makes a technical correction.

 

Regulation 5 - Regulation 5 (Application for internal review and fee payable)

 

This regulation amends regulation 5 of the Review Regulations to increase the fee for internal review from $150 to $200.

 

Regulation 6 - Regulation 7 (Refund of fee for internal review)

 

Regulation 7 of the Review Regulations provides that the fee for internal review of a decision is not refundable where the application for review is withdrawn. This regulation amends regulation 7 to enable refund of the fee where the application is withdrawn because the applicant for the visa or entry permit has died or a member of his or her family has died. The amendment also enables refund of the fee, in some cases where the application is withdrawn because the applicant has been granted a visa or an entry permit of the same kind as the one to which the review application related.

 

Regulation 7 - Regulation 8E (Persons who may apply under this Part)

 

This regulation amends regulation 8E of the Review Regulations by omitting some unnecessary words.

 

Regulation 8 - Regulation 20 (Refund of fee for review by Tribunal)

 

Regulation 20 of the Review Regulations provides that the fee for IRT review of a decision is not refundable where the application for review is withdrawn. This regulation amends regulation 20 to enable refund of the fee where the application is withdrawn because the applicant for the visa or entry permit has died or a member of his or her family has died. The amendment also enables refund of the fee in some cases where the application is withdrawn because the applicant has been granted a

visa or an entry permit of the same kind as the one to which the review application related.

 

Regulation 9 - Regulation 21 (Individuals and organisations entitled to apply for review)

 

This regulation makes a technical amendment to regulation 21 of the Review Regulations for clarification.

 

Regulation 10 - Regulation 21C (Persons who may apply for review of decision to refuse a December 1989 entry permit)

 

The Migration Regulations (regulation 131A) require the nominator of an applicant for a December 1989 (temporary) entry permit to be an Australian citizen or an Australian permanent resident. This regulation amends regulation 21C of the Review Regulations to require that a nominator applying for review of a decision to refuse a December 1989 (temporary) entry permit be an Australian citizen or permanent resident.

 

Regulation 11 - Regulation 24 (Time limits)

 

Sections 115 and 116 of the Migration Act were recently amended to provide that the period prescribed in the regulations for lodging a review application at either tier should not exceed 28 days where the principal applicant is physically present in Australia or 70 days where the principal applicant is not physically present in Australia. Previously, the periods of 28 days and 70 days were aggregate periods in which applications for both internal and IRT review must have been lodged.

 

This regulation omits regulation 24 of the Review Regulations and substitutes a new regulation 24 which reflects the new time limits in the Migration Regulations for lodgment of applications.

 

The amendment has been made retrospective to 26 June 1991 when the enabling legislation received assent.

Overview

The Migration (Review) Regulations (Amendment) 1991 No. 298, issued under the authority of the Minister for Immigration, Local Government and Ethnic Affairs, amends the Migration (Review) Regulations 1981. This set of regulations was introduced to address several issues related to the review of migration decisions under the Migration Act 1958. The primary objective of these amendments is to correct grammatical and technical errors within the existing regulations, update fees for internal reviews in accordance with government policy, provide for refunds of review fees under certain circumstances, and amend time limits for lodging review applications to align with recent legislative changes. The retrospective application of Regulation 11, effective from 26 June 1991, ensures that applicants are not disadvantaged and adheres to the provisions of the Acts Interpretation Act 1901. These changes aim to streamline the review process, ensuring clarity and fairness in the application and review of migration decisions.

Scope and Application

The Migration (Review) Regulations (Amendment) 1991 No. 298 amends the Migration (Review) Regulations 1991 to make technical and grammatical corrections and to update certain provisions in light of recent amendments to the Migration Act 1958. These amendments apply to individuals and entities seeking to review certain decisions made under the Migration Act, including those made by review officers and the Immigration Review Tribunal. The amendments clarify the types of decisions that can be reviewed, the manner and form of applications for review, and the eligibility of persons who may apply for such reviews. Notably, the amendments specify that nominators applying for review of a decision to refuse a December 1989 (temporary) entry permit must be Australian citizens or permanent residents. The changes also update the fees for internal reviews and the refund conditions for review fees under specific circumstances, such as the death of an applicant or their family member, or if the applicant has been granted a visa or entry permit of the same kind. Additionally, the amendment to regulation 24 aligns the time limits for lodging review applications with those set out in the Migration Regulations, which were recently updated to provide a 28-day period for applicants physically present in Australia and a 70-day period for those not physically present. The retrospective application of regulation 11, effective from 26 June 1991, ensures that applicants who were mistakenly informed about the new time limits will not be disadvantaged.

Key Provisions

The main operative sections of the Migration (Review) Regulations (Amendment) 1991 No. 298 pertain to the review of migration decisions. Section 181 of the Migration Act 1958 empowers the Governor-General to make regulations for the purposes of the Act. Specifically, section 115 and 116 of the Act allow regulations to specify the types of decisions subject to review, the application process for reviews, and the eligibility of applicants. The purpose of the regulations, as stated in the explanatory statement, is to make grammatical and technical corrections, increase the fee for internal review, provide for fee refunds under certain conditions, ensure that nominators of December 1989 temporary entry permit applications are Australian citizens or permanent residents, and adjust time limits for lodging review applications to align with recent amendments to the Migration Act. These regulations impose several obligations on the parties and entities they govern. For instance, applicants for internal review must now pay a fee of $200 instead of $150. Furthermore, if an applicant withdraws their review application under specific circumstances, such as the death of the applicant or a family member, or if the applicant has been granted a visa or entry permit of the same kind, they may be eligible for a refund of the internal review fee. Similarly, for reviews by the Immigration Review Tribunal, the fee is also refundable under the same conditions. Additionally, any person applying for review of a decision to refuse a December 1989 temporary entry permit must be an Australian citizen or permanent resident. The regulations also mandate that review applications must be lodged within specific timeframes, now aligned with the recent amendments to the Migration Act. The regulations do not explicitly mention any new offences or penalties for breaches, but the amendments could imply certain consequences for non-compliance. For example, if an application for review is not lodged within the specified time limits, it may be deemed invalid, and the applicant may lose the right to challenge the decision. Additionally, making false statements in an application for review could lead to other legal consequences under the Migration Act or other applicable laws. The explanatory statement does not detail specific penalties but highlights that the retrospectivity of the amendments is beneficial and does not disadvantage any person, thereby adhering to the provisions of the Acts Interpretation Act 1901.

Legal classification tags

Area of Law
Immigration & Refugee Law
Instrument
Regulation
Concepts
Commencement Provisions
Regulatory Standards
Enforcement Powers

Interactions

Authorises

All Versions

Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.